Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc.

1403
Case 1:05-cv-12237-WGY Document 1403 Filed 10/15/2007 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

AMGEN, INC.,

Plaintiff,

v.
Civil Action No. 05-CV-12237 WGY
F. HOFFMANN-LA ROCHE, LTD.,
ROCHE DIAGNOSTICS GMBH, and
HOFFMANN-LA ROCHE, INC.

Defendants.

ROCHE’S OPPOSITION TO AMGEN’S “MOTION TO PRECLUDE ROCHE’S EXPERT

DR. GREGORY LONGMORE FROM OFFERING OPINIONS BASED ON AN
INFRINGEMENT ANALYSIS THAT IS INCONSISTENT WITH FEDERAL CIRCUIT
PRECEDENT AND WITH THE COURT’S CLAIM CONSTRUCTION RULING THAT
AMGEN’S CLAIMS ARE OPEN-ENDED (DI 1384)”

Amgen’s motion to preclude Dr. Longmore’s testimony on claim 3 of the ‘933 patent is

nothing more than an improper attempt to circumvent this Court’s settled claim construction.

Moreover, Amgen’s assertions in its motion flatly contradict the sworn testimony of Amgen’s own

experts. Amgen’s motion should be denied.

In its July 3, 2007 Markman Memorandum and Order (DI 613), this Court specifically

construed the ‘933 claim 3’s claim term “glycoprotein product of...expression in a mammalian host

cell” to mean “a glycoprotein that is the product of...expression in a mammalian host cell.” (DI 613

at p. 32). This definition squarely comports with the well-established principle of claim construction

that the words of a claim “‘are generally given their ordinary and customary meaning.’” Id. at p. 9

(citing Phillips v. AWH Corp., 415 F.3d 1303, 1312 Fed. Cir. 2005). Amgen’s attempt to escape the

Court’s explicit claim construction, through strained analogy to a different claim term (namely,

“human erythropoietin”) is without merit.

Dockets.Justia.com
 Case 1:05-cv-12237-WGY Document 1403 Filed 10/15/2007 Page 2 of 3

There is no dispute that the claims of the ‘933 patent require that their claimed product be

made in a mammalian host cell. See, e.g., Testimony of Dr. Lodish at Trial Tr. 2507:21 - 2508:1. It

is also undisputed that CERA is not made in a cell, and is not the “product of expression in a

mammalian host cell” as required by the claims of the ‘933 patent. See, e.g., Testimony of Dr.

Lodish at Trial Tr. 2505:14-18 (confirming that CERA, “itself, is not made in a mammalian host

cell.”); see also Trial Tr. at 2506:13-14, 2507:17-20, 2507:21 - 2508:1

For all of the foregoing reasons, Amgen’s motion should be denied.

Dated: October 15, 2007 Respectfully submitted,

Boston, Massachusetts
F. HOFFMANN-LA ROCHE LTD,
ROCHE DIAGNOSTICS GMBH, and
HOFFMANN-LA ROCHE INC.

By its attorneys,

/s/ Thomas F. Fleming

Leora Ben-Ami (pro hac vice)
Patricia A. Carson (pro hac vice)
Thomas F. Fleming (pro hac vice)
Howard S. Suh (pro hac vice)
Christopher T. Jagoe (pro hac vice)
Vladimir Drozdoff (pro hac vice)
Peter Fratangelo (BBO# 639775)
KAYE SCHOLER LLP
425 Park Avenue
New York, New York 10022
Tel. (212) 836-8000

and

Lee Carl Bromberg (BBO# 058480)

Julia Huston (BBO# 562160)
Keith E. Toms (BBO# 663369)
Nicole A. Rizzo (BBO# 663853)
BROMBERG & SUNSTEIN LLP
125 Summer Street
Boston, MA 02110
Tel. (617) 443-9292
 Case 1:05-cv-12237-WGY Document 1403 Filed 10/15/2007 Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing
(NEF). Pursuant to agreement of counsel dated September 9, 2007, paper copies will not be sent
to those indicated as non registered participants.

/s/ Thomas F. Fleming